EEOC v. City of Milwaukee

• Decision Date: 05 March 1996
• Docket Number: No. 95-Misc-56.,95-Misc-56.
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. CITY OF MILWAUKEE, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

919 F. Supp. 1247

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. CITY OF MILWAUKEE, Defendant.

No. 95-Misc-56.

United States District Court, E.D. Wisconsin.

March 5, 1996.

Barbara L. Henderson, EEOC, Milwaukee, WI, for plaintiff.

Mary Pat Ninneman, Quarles & Brady, Milwaukee, WI, for defendant.

ORDER

WARREN, District Judge.

On August 16, 1995, the plaintiff, Equal Employment Opportunity Commission ("EEOC"), filed an application seeking enforcement of an administrative subpoena requiring the Police Department of the City of Milwaukee ("MPD") to comply with a subpoena issued and served by the EEOC. This dispute arises out of an attempt by the EEOC to investigate charges of race discrimination and retaliation charged against the Milwaukee Police Department ("MPD") by more than thirty (30) African-Americans. According to the EEOC, while the MPD has provided some of the requested information, it has refused to produce most of the documents and information requested by the EEOC. Subpoena number MK-95-006, received by the MPD on February 13, 1995, is the subject of this enforcement action.

On January 10, 1996, Magistrate Judge William E. Callahan, Jr. conducted a conference with parties in order to determine which subsections of the subpoena had not been complied with and were not going to be complied with, absent an Order from the Magistrate Judge. The net result of the conference and ongoing submission of affidavits from the parties discussing compliance indicated that the following subsections of the subpoena were not being complied with and consequently the EEOC sought an Order of Enforcement. Those subpoena subsections are: B1-3; B7; C1; C7(d) and (g); C9-11; C15; C18-19; D6; E1; E3; E17; E38-39; and, E47. (Magistrate Judge's Order at 5.)

On February 8, 1996, Magistrate Judge Callahan issued an exhaustive and detailed Order addressing the enforcement issue as well as other procedural motions. Magistrate Judge Callahan engaged in a thorough discussion of each subsection even though the MPD failed to exhaust its administrative remedies and did not petition to revoke or modify the subpoena served upon it, which could have precluded the MPD from the right to raise objections to the enforcement of the EEOC subpoena. EEOC v. Roadway Express, Inc., 569 F.Supp. 1526, 1529 (N.D.Ind.1983). The Magistrate Judge concluded that the "subpoena clearly relates to an investigation within the agency's authority" and "that the information and documents sought in subsections B1-B3; B7; C1; C7(d) and (g); C9-11; C18-19; E1; E3; E17; E38-39; and E47 of the subpoena, with the exceptions noted below are reasonably relevant to that inquiry" and "are neither too indefinite, nor unreasonably broad or burdensome." (Order at 22-23.) A clerical mistake on page 25 of the Order indicates that Magistrate Judge Callahan ordered compliance with subsection C15, however, the Court clarifies that the Magistrate Judge did not and has not ordered compliance with C15 due to that subsection's vagueness. Accordingly, the Magistrate Judge granted the EEOC's Motion to enforce those subsections of the subpoena MK-95-006 with noted exceptions.

On February 16, 1996, the City of Milwaukee filed an Objection to the Magistrate Judge's Order pursuant to 28 U.S.C. § 636(b)(1)(A) and Local Rule 13.02. Specifically, the City of Milwaukee objects to the confidentiality agreement which allows the City two calendar days "to seek a protective order from the Federal District Court in the event the EEOC makes known its intent to release confidential documents provided to the EEOC from the City during the course of the EEOC's pattern and practice investigation." (Objection at 1.) The City requests three business days in which to seek a protective order rather than two calendar days. On February 29, 1996, the EEOC filed a letter with this Court consenting to give the City three business days to seek a protective order. There are no other objections to the Order of Magistrate Judge Callahan.

Pursuant to 28 U.S.C. § 636(b)(1)(C), a district court must review de novo the recommendations of the Magistrate Judge to which either party timely objects. See United States v. Raddatz, 447 U.S. 667, 673-76, 100 S.Ct. 2406, 2411-12, 65 L.Ed.2d 424 (1980). The Court has reviewed the applicable law and Order of Magistrate Judge Callahan, and having received no objections, agrees with and adopts the Order of the Magistrate Judge dated February 8, 1996 with the following modifications:

1. The City of Milwaukee Police Department is not ordered to comply with subsection C15 of subpoena MK-95-006 (as incorrectly stated on page 25 of the Magistrate Judge's Order).

2. The City of Milwaukee Police Department will be granted three business days to seek a protective order opposing any proposed production of materials by the EEOC.

SO ORDERED.

DECISION AND ORDER

CALLAHAN, United States Magistrate Judge.

On August 16, 1995, the applicant, Equal Employment Opportunity Commission, ("EEOC"), filed an application seeking enforcement of an administrative subpoena. The EEOC seeks an Order requiring a City of Milwaukee ("City") agency, the Milwaukee Police Department ("MPD"), "to comply with a subpoena issued and duly served by the EEOC."

Background

In its application, the EEOC alleges that the instant action is one for enforcement of a subpoena issued pursuant to § 710 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-9. Jurisdiction is conferred upon this Court by §§ 706(f)(3) and 710 of Title VII, 42 U.S.C. §§ 2000e-5(f) and 2000e-9, which incorporate § 11 of the National Labor Relations Act, as amended, 29 U.S.C. § 161(2).

The EEOC avers in its application that, since December 1990, more than 30 African-Americans who are MPD officers or unsuccessful applicants for MPD employment have filed charges of discrimination with the EEOC's Milwaukee District Office. ("EEOC/MDO"). These individuals have alleged various forms of race discrimination and retaliation, including racial harassment, discrimination in hiring, promotion, job assignment, discipline, and termination. Again, according to the EEOC application, on December 3, 1993, the EEOC Milwaukee District Office's District Director, Chester V. Bailey, sent a letter to Grant Langley, Milwaukee City Attorney, informing him that the EEOC would be investigating the race discrimination charges against the MPD as part of a single pattern and practice investigation.

The EEOC avers that during the pattern and practice investigation it served the MPD with several requests for information, instructing the MPD to produce various categories of documents and to provide its position on each charge. According to the EEOC, while the MPD has provided some of the requested information, it has refused to produce "most of the information and documents sought by the EEOC/MDO".

As a consequence, on February 9, 1995, the EEOC served Subpoena No. MK-95-006, via certified mail, on MPD Chief of Police Philip Arreola. The subpoena required the MPD to produce certain categories of documents, to provide access to other documents, and, to provide its position on several charges. It also set due dates of February 21 and 24, March 10 and 24, and April 30, 1995, for responses. According to the EEOC application, the MPD received the subpoena on February 13, 1995.

The City admits that it did not file a "Petition to Modify or Revoke the Subpoena" within the time specified by 29 C.F.R. § 1601.16(b). It asserts, however, that it did not file a petition seeking administrative relief from the subpoena because it was engaging in negotiations with the EEOC concerning compliance with the subpoena.

Subpoena No. MK-95-006, which is the subject of this enforcement action, has a 20-page attachment which lists the information and materials sought by the EEOC under the subpoena. The information and materials are arranged under various category heads. These category heads, or sections, are identified as follows: A. Request for Databases; B. Request for Access; C. Materials Past Due; D. Supplements to Materials Already Submitted; and, E. Materials Currently Submitted. Each of the sections, in turn, has a number of subsections. In its application for enforcement of the subpoena, the EEOC abandoned its effort to obtain information and materials identified in the following subsections of the subpoena: A1-7; B4; C2-4; C6; C7(a)-(c); C7(e)-(f); E25-26; E28; E30; E36-37; E40; and, E50-56.

After the parties had an opportunity to file memoranda and affidavits in support of their respective positions on the EEOC's application, this Court conducted a conference with the parties on January 10, 1996, for the purpose of better defining which subsections of the subpoena had not been complied with and were not going to be complied with, absent an Order from this Court. In other words, the conference was conducted to determine if there were additional subsections of the subpoena that had been already complied with, or were going to be complied with, thereby obviating the need for this Court to rule on the EEOC's application for enforcement with respect to those subsections.

The conference produced the following results. In addition to those subsections identified above, of which the EEOC had earlier indicated that it was abandoning enforcement, the EEOC stated during the conference that it believed the City had fully responded to the following subsections, and, therefore, there was no need for this Court to rule on their enforcement: C5; C8; C12; C13; C14; C16-17; C20; D2-5; E4-5(a)-(d); E6-16; E18-26; E28-37; E41-44; E57; and, E58.

At the conference the City represented to the Court that there were certain subsections of the subpoena that it had fully complied with. The City advised the Court and the EEOC that counsel would be submitting an affidavit executed by a person (or persons), in a position to aver, under oath, that to the extent such documents or...